Saturday, 29 June 2019

The Odyssey of a legal guardian


An ordinary case for the recognition of a German order appointing a legal guardian became a sheer nightmare for the applicant. It took her twelve years in total, three decisions in Germany and another six in Greece, for finally being recognized as an appointed legal guardian of her husband…



THE FACTS

The applicant is the wife of a Greek national living in Germany, who is in coma since July 2006. By virtue of an application before the Cologne Justice of the Peace, she was appointed as his legal guardian [the 2006 order]. She then filed an application for the recognition of the German order (Beschluss) before the Thesprotia Court of first Instance (hereafter: CFI). The application was dismissed, because the German court applied German law for the appointment of the legal guardian, and because no appointment of the family council (as provided by Greek law, which should have been applied according to Article 8 Greek Civil Code) had taken place [Thesprotia CFI 297/2010, unreported].
The applicant filed then an application before the same court, this time requesting her appointment as a legal guardian of her husband directly in Greece. The court dismissed again the application for two reasons: First, because the application was not served to her husband timely; secondly, because the application had to be filed before the Athens court, which is the proper forum for Greeks living abroad [Thesprotia CFI 119/2011, unreported].
The applicant filed a third application before the same court, this time requesting the recognition of a second German order issued again by the Cologne Justice of the Peace [the 2011 order]. Again, the application was dismissed: Although this time the German court applied Greek law for the appointment of the family council, her appointment was again founded under German law [Thesprotia CFI 66/2013, unreported].
A fourth attempt came two years later on the grounds of a new order of the Cologne court [the 2013 order]: This time the application was dismissed due to res iudicata emanating from the 2006 & 2011 orders [Thesprotia CFI 26/2015, unreported].
An appeal was lodged against the latter decision. The Corfu Court of Appeal quashed partially the first instance judgment, stating that no res iudicata may be invoked against the 2013 German order, given that the latter refers to a period of time not covered by the previous orders [Corfu CoA 42/2016, unreported]. 

THE RULING

The family of the person under guardianship (father/mother/sister) filed an appeal on points of law before the Supreme Court. Out of three grounds for appeal, two are worthy to mention: First, they insisted on the interdependence of the three German orders, which should have led the Corfu CoA to accept the res iudicata defence; second, they vaguely invoked the violation of Article 4 of the 1961 Greek-German bilateral treaty on the recognition and enforcement of judgments in civil and commercial matters, which provides for a ground for refusal if the foreign court applied national law which was not applicable according to Greek rules on the conflict of laws.
The Supreme Court dismissed both grounds: It first repeated the reasoning of the Corfu CoA, in order to reject the ostensible interdependence of the German orders, which would presumably lead to the acceptance of res iudicata; it then easily discarded the argument of a violation concerning Article 4 of the Greek-German treaty, because it was proven that the German court had in fact applied Greek law for the appointment both of the legal guardian and the family council [the German order is reproduced almost to its entirety in Greek translation in the Supreme Court’s judgment].
For the reasons above, the appeal on points of law was dismissed [SC 1395/2018, unreported].

COMMENTS

The case is a demonstrative example of the pitfalls surrounding cross-border litigation not covered by EU legislation. Both German and Greek counsellors & courts committed mistakes: In the 2006 & 2011 orders the Cologne court did not take into account the nationality of the applicant’s husband, presumably because it was not underlined by her lawyer. The judgment rendered by the Thesprotia CFI in 2015 was indeed wrong. A reason for this result might have bern connected with the fact that the applicant requested the recognition of all three German orders, thus allowing the court to conclude that there was a certain connection between them. Fortunately, both the Corfu CoA and the Supreme Court put things back in their proper place.

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Monday, 25 February 2019

Right state, but wrong place: Exorbitant rules knocking at the backdoor


For several years now, exorbitant rules on jurisdiction have been banished from the radius of the Brussels Convention & Regulation I regimes. One would think that court practice became familiar with these provisions. A recent judgment of the Thessaloniki Court of Appeal demonstrates rather the opposite.

Thessaloniki CoA Nr. 129/2018, published in: Επιθεώρηση Πολιτικής Δικονομίας [Civil Procedure Law Review] 2018, pp. 156 et seq.




THE FACTS

The parties are relatives: the claimant [C] is the brother of the first respondent [R1]; the second respondent [R2] is the husband of the first one. The plaintiff is a resident of Thessaloniki, whereas the defendants are living in the UK. Tension was prevailing in their relation for years. In 2006 they met in a village of Fthiótida, an administrative unit of the Hellenic Republic, on the occasion of the burial of C & R1’s father. Following the funeral, R1 & R2 attacked C, causing him serious injuries; at the same time they were using vulgar language against him. C filed an action for damages on the grounds of pain and suffering. The action was filed before the Thessaloniki 1st Instance court. The latter acknowledged its territorial competence, omitting any reference to international jurisdiction issues. The court invoked Article 40 Para 1 Greek Code of Civil Procedure, which reads as follows: If the subject matter of the claim concerns property matters, litigation against persons not residing in Greece may be entertained before the court where the respondent has assets. It was brought to the court’s attention that R1 owns property in Thessaloniki, a fact not disputed by R1. The court ordered the defendant to pay damages [Thessaloniki 1st Instance court Nr. 7484/2014, published in:  Armenopoulos 2015, pp. 276 et seq.]. The latter lodged an appeal. 


THE RULING

The main ground of appeal concerned the lack of the court’s venue: There was no doubt that Greek courts had international jurisdiction to try the case; the incident occurred however in a different place than Thessaloniki. Hence, the court should not have accepted its territorial competence; instead, it ought to refer the matter to the proper court, i.e. the Lamia 1st Instance court.

Initially, the appellate court entered into a detailed analysis of the relation between domestic law and Brussels I rules on jurisdiction. It then made reference to Article 40 Greek Code of Civil Procedure, stating that its application is examined in accordance with domestic rules of Civil Procedure. Further on, the court indicated that the exclusion of Article 40 Greek Code of Civil Procedure from the ambit of the Brussels regime [Art. 3 Brussels I Regulation in conjunction with Annex I] affects solely the international jurisdiction aspect; once the latter is given, domestic rules on establishing venue are to be applied. 

In this fashion, the claimant has the right to opt among the domestic rules available for filing his action. This could be either the place where the harmful event occurred [Art. 35 Greek Code of Civil Procedure] or even the place where the defendant has assets [Art. 40 Greek Code of Civil Procedure].

For the reasons mentioned above, the appeal was dismissed, and the venue of the Thessaloniki courts confirmed.


COMMENTS

Instead of proceeding to personal remarks, I prefer to refer to some solid statements made by the forefathers of the Regulation and contemporary commentators. First, it was Jenard who underlined in his Report the following: Adoption of the 'special' rules of jurisdiction is also justified by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it. Thus, to take the example of the forum delicti commissi, a person domiciled in a Contracting State other than the Netherlands who has caused an accident in The Hague may, under the Convention, be sued in a court in The Hague. This accident cannot give other Netherlands courts jurisdiction over the defendant. On this point there is thus a distinct difference between Article 2 and Articles 5 and 6, due to the fact that in Article 2 domicile is the connecting factor [Jenard Report, OJ 5.3.1979, C 59/22]. Reinhold Geimer & Rolf Schütze confirm the above in their seminal work Europäisches Zivilverfahrensrecht (3rd edition, 2010), Art. 5 Rn. 268. Peter Mankowski clarifies unambiguously the question in the same fashion: … all heads of special jurisdiction contained in Art. 5 vest jurisdiction in a certain court, not the courts of a state. Hence, Art. 5 … does not only regulate international jurisdiction, but also local jurisdiction or venue, excluding the rules of the national law of the forum on local jurisdiction from application. These rules are rendered inoperative.[Magnus/Mankowski, Brussels I Regulation, 2nd revised edition, art. 5 note 3]. Last but for sure not least, this position is repeated in the recent Greek Commentary on the Brussels I bis Regulation [Nikas/Sachpekidou, European Civil Procedure (2016), Art. 7 nrs. 100-101].

I would like to believe that this ruling is the exception to the rule. Indeed, Greek courts, especially the appellate ones, are demonstrating profound knowledge of Brussels I Regulation matters. I decided to present this case as an example to be avoided in the future.


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